1. Retrieval and Renewal
Contemporary interest in restorative justice principles has occasioned a retrieval and revalorisation of traditional practices, particularly those of First Nation peoples. For example, the Navajo Nation’s traditional peace-making circle has been adapted and used in some contemporary contexts where parties seek a restorative model. Amongst the Navajo, where harm is done to an individual, the relatives of the one who has harmed and of the one to whom the harm is done are brought together to seek a restoration of the relationships that have been broken. The African concept of ubuntu[3] and traditional Maori justice[4] have also been influential in this regard and they, with other first nation world-views, have been key to providing both a philosophical underpinning and practical resources for the development of restorative justice. In this context a relational anthropology grounds a communitarian solidarity in which ‘law is not a process to punish or penalise people, but to teach them how to live a better life. It is a healing process that either restores good relationships among people or, if they do not have good relations to begin with, fosters and nourishes a healthy environment.’[5] Antecedents in the western legal tradition are less obvious, but do exist, albeit within the context of the dominant retributive framework. Criminologist and former Prison Governor David Cornwell[6] cites historians of penology who conclude that it was only gradually through the Middle Ages (in Europe) that retribution replaced restitution as the primary purpose of punishment. The reasons were many, but in the main the emergence of retributive systems of criminal justice were linked primarily to the centralisation of criminal justice and to the state’s replacement of the victim by the offender as the primary stakeholder in the administration of justice.[7] Not with standing the dominance of the retributive philosophy however, traces of the restorative approach have persisted within the western legal tradition, and continue to be retrieved by advocates of restorative justice.
The theological traditions of Judaism and Christianity have also been catalysts for the political commitment to a justice that restores right relation. Inevitably, as with any religion, each tradition’s view of justice is diverse and mixed, with strong retributive interpretations sitting alongside restorative ones. Nonetheless deeply embedded in the world-views and ethical values of these religious traditions is the belief that reconciliation is a characteristic of God’s actions and purposes in the world, and that God’s compassion and mercy are an invitation to humans to act in compassionate and merciful ways towards each other. The invocation of theological rationales to support the implementation of restorative justice principles in the secular political realm has been controversial in some quarters, with critics arguing that religiously derived principles have no place in the political deliberations of the state. Some of the debates surrounding South Africa’s Truth and Reconciliation Commission focused on this issue, with critics hostile both to the idea that forgiveness should be available to the perpetrators of serious crimes, and also to the invocation of the explicitly Christian origins of and rationale for the approach.[8] However there are echoes of restorative justice in many traditions, so that advocates of restorative justice can harness a range of diverse resources and can call on a plurality of traditions, in the effort to effect change in the criminal justice system and to support the achievement of more durable forms of political reconciliation.
[3] See Mfuniselwa Bhengu, Ubuntu: the Essence of Democracy, Cape Town: Novalis Press, 1996 and Augustine Shutte, Ubuntu: An Ethic for a New South Africa, Pietermaritzburg: Cluster Publications, 2001.
[4] John Pratt, ‘Colonisation, Power and Silence: a History of Indigenous Justice in New Zealand Society’, in Burt Galway & Joe Hudson, (eds.), Restorative Justice: International Perspectives, New York: Criminal Justice Press, 1996, p. 137-155.
[5] Robert Yazzie & James Zion, ‘Navajo Restorative Justice: The Law of Equality and Justice’, in B. Galway & J. Hudson, (eds.), Restorative Justice: International Perspectives, op. cit., p. 160.
[6] David Cornwell, Mercy A Restorative Philosophy, Hampshire: Waterside Press, 2014, p. 18.
[7] Nils Christie, ‘Conflicts as Property’, British Journal of Criminology, 17, 1, 1977, pp. 1-15.
[8] See Henry Steiner, (ed.), Truth Commissions: A Comparative Assessment, Cambridge: World Peace Foundation, 1997, and Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State, Cambridge: Cambridge University Press, 2001.